Download Why Regulation of Greenhouse Gases under the Clean Air Act`s

Picking the Right Tools:
Why Regulation of Greenhouse Gases under the Clean Air Act’s
National Ambient Air Quality Standards Is Statutorily Compelled,
But Not a Practical Tool in the Combat Against Climate Change
by
Megen E. Miller
Submitted in partial fulfillment of the requirements of the
King Scholar Program
Michigan State University College of Law
under the direction of
Professor Paul Stokstad
Spring, 2014
TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 2 I. A (VERY) BASIC OVERVIEW OF THE SCIENCE AND EFFECTS OF CLIMATE CHANGE ................... 9 A. The Physical Science of Climate Change .......................................................................... 10 B. The Human Health, Public Welfare, and Environmental Effects of Climate Change ....... 11 II. THE LEGAL BACKGROUND : MASSACHUSETTS V. EPA AND THE ENDANGERMENT FINDINGS .... 13 A. Massachusetts v. EPA ........................................................................................................ 14 i. Background .................................................................................................................... 14 ii. The Court’s Rulings ....................................................................................................... 15 a.
The Petitioners Have Standing .............................................................................. 15 b. Greenhouse Gase Are an “Air Pollutant” Under the Clean Air Act...................... 16 c.
The EPA Must Consider Only Scientific Judgments in Deciding Whether to Make
an Endangerment Finding ..................................................................................... 19 B. The EPA’s Endangerment Findings for Mobile Sources ................................................... 21 i. The Substance of the Endangerment Findings ............................................................... 22 ii. Judicial Review of the Endangerment Findings: Coalition for Responsible Regulation,
Inc. v. EPA ..................................................................................................................... 26 III. MASSACHUSETTS V. EPA AND THE ENDANGERMENT FINDINGS FOR MOBILE SOURCES LIKELY
LEGALLY COMPEL THE EPA TO MAKE AN ENDANGERMENT FINDING FOR GREENHOUSE GASES
UNDER THE NAAQS ...................................................................................................................... 27 A. The Definition of “Air Pollutant” in Massachusetts v. EPA Applies to the Entire Clean Air
Act ...................................................................................................................................... 27 B. Comparing the Substantive Requirements of the Provisions ............................................. 28 i. The EPA’s First Step in Classifying Greenhouse Gases as a Criteria Pollutant Is
Satisfied Because the “presence of [Greenhouse Gases] in the ambient air results from
numerous or diverse mobile or stationary sources”...................................................... 29 ii. The EPA’s Second Step in Classifying Greenhouse Gases as a Criteria Pollutant Is
Satisfied the “air pollution may reasonably be anticipated to endanger public health or
welfare” ......................................................................................................................... 30 iii. Greenhouse Gases Cause or Contribute to the Air Pollution and Climate Change ...... 32 C. Classification of Criteria Pollutants that Meet the Requirements
is Statutorily Mandatory ..................................................................................................... 33
1
IV. REGARDLESS OF LEGAL NECESSITY, ENVIRONMENTALISTS SHOULD NOT FORCE THE ISSUE .. 37 A. Regulating GHGs Does Not Make Practical Sense Under the NAAQS ........................... 38 B. State Implementation Would Cause Significant Problems ................................................ 42 C. The Supreme Court Could Read More Discretion into the Clean Air Act ........................ 43 CONCLUSION.................................................................................................................................. 45 “Human influence on the climate system is clear. . . . Warming in the climate system is
unequivocal.”1
– Intergovernmental Panel on Climate Change (IPCC) Press Release
“Someday, our children, and our children’s children, will look at us in the eye and they'll ask us,
did we do all that we could when we had the chance to deal with this problem and leave them a
cleaner, safer, more stable world?”2
– President Barack Obama, June 25, 2013
INTRODUCTION
While portions of the United States public continue to contest the existence of climate
change and whether its cause is anthropogenic,3 scientific experts accept that the earth is
warming and that human activities are virtually certain to be the cause.4 The effects of climate
1
IPCC, Human Influence on Climate Change Clear, IPCC Report Says, IPCC, 1 (Sept. 27, 2013),
http://www.ipcc.ch/news_and_events/docs/ar5/press_release_ar5_wgi_en.pdf [hereinafter IPCC, Human Influence].
2
Tom Randall, 'We Need to Act': Transcript of Obama's Climate Change Speech, BLOOMBERG (June 25,
2013),
http://www.bloomberg.com/news/2013-06-25/-we-need-to-act-transcript-of-obama-s-climate-changespeech.html.
3
Michelle S. Simon & William Pentland, Reliable Science: Overcoming Public Doubts in the Climate
Change Debate, 37 WM. & MARY ENVTL. L. & POL'Y REV. 219, 220-23 (2012) (discussing the American public’s
lack of confidence in the credibility and legitimacy of climate change science and noting that other researchers have
attributed this “to the prevalence of scientific illiteracy, lack of familiarity with technical problems, industry
propaganda, and political luddites”); Andrew J. Hoffman, Climate Science as Culture War, STANFORD SOC.
INNOVATION REV. (Fall 2012), http://www.ssireview.org/articles/entry/climate_science_as_culture_war (discussing
the lack of confidence in the belief in climate science, that climate change has become a part of the partisan “culture
wars,” backlash against scholars in the modern era, and that climate change is “an existential challenge to our
contemporary worldview”).
4
William R. L. Anderegg, James W. Prall, Jacob Harold & Stephen H. Schneider, Expert Credibility in
Climate Change, 107 Proceedings of the Nat’l Acad. of Sci. of the U.S. of Am. 12107 (2010); IPCC, Human
Influence, supra note 1, at 1. The Intergovernmental Panel on Climate Change (IPCC) is an international body
formed by the United Nations (UN) to assess climate change. In 1988, the UN formed the panel and charged it with
2
change can already be seen in the increase in morbidity and mortality due to extreme weather
events, especially for vulnerable populations; decreased crop yields; negative impacts on
ecosystems; and loss of coastal lands to rising sea levels.5 Climate change is quickly becoming a
human rights issue due to the looming threats, including disease, increase in heat stroke death,
loss of agriculture, and the displacement of entire communities to rising sea levels.6
Climate change poses one of the most difficult challenges the United States and the world
have ever had to face. Addressing climate change involves not only slowing the emissions of
greenhouse gases into the air, but convincing the public of the existence of climate change and
the need for action,7 adapting to the changing climate and world,8 inventing clean technologies
and the corresponding intellectual property issues,9 and handling the economic consequences of
the change from business as usual by transforming the need for regulation and adaptation into an
preparing ““a comprehensive review and recommendations with respect to the state of knowledge of the science of
climate and climate change.” G.A. Res. 43/53, ¶ 10, U.N. Doc. A/RES/43/53 (Dec. 6, 1988). The panel is made up
of thousands of scientists from around the world. It does not complete its own research, but reviews and assesses
“the most recent scientific, technical and socio-economic information produced worldwide relevant to the
understanding of climate change.” IPCC, Organization, IPCC, http://www.ipcc.ch/organization/organization.shtml
(last visited March 30, 2014).
Since then it has released five climate change assessment reports; the finalized version of the fifth
assessment report (AR5) will not be available until October 31, 2014, but the three Working Groups have released
their portions of the report, with the synthesis report being the last portion not yet published. Fifth Assessment
Report (AR5), IPCC, http://www.ipcc.ch/ (last visited May 4, 2013) (providing links to the different portions of the
report). In recent years, the findings of IPCC have been under attack because one finding of the IPCC review was
found to have been based on a non-peer reviewed article. As a result, the IPCC analyzed its procedures and
concluded that it had to handle non-peer reviewed information differently. See IINTERACADEMY COUNCIL
COMMITTEE TO REVIEW THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE ASSESSMENTS:
REVIEW OF THE PROCESSES AND PROCEDURES OF THE IPCC xiii–xiv (2010); Simon & Pentland, supra note 3, at 222.
Despite these problems, the IPCC is a leading body on climate change assessment, and this article will make use of
its most recent findings in AR5.
5
IPCC WORKING GROUP II, Chapter 26 North America, in IPCC WRGII AR5, IPCC (Mar. 31, 2014),
http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-Chap26_FGDall.pdf [hereinafter IPCC North America].
6
JAAP SPIER, SHAPING THE LAW FOR GLOBAL CRISES 71-82 (2012) (discussing the necessity of viewing
climate change as a human rights issue); MICHAEL B. GERRARD & KATRINA FISCHER KUH, THE LAW OF
ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS 352, 693-96 (2012); IPCC WORKING GROUP
II, Chapter 11 Human Health: Impacts, Adaptation, and Co-Benefits, in IPCC WRGII AR5, IPCC 3-4 (Mar. 31,
2014), http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-Chap11_FGDall.pdf.
7
See generally Simon & Pentland, supra note 3.
8
See generally GERRARD & KUH, supra note 6.
9
See generally MATTHEW RIMMER, INTELLECTUAL PROPERTY AND CLIMATE CHANGE: INVENTING CLEAN
TECHNOLOGIES (2011).
3
economic benefit rather than a loss.10 The United States, until recently, has done very little to
address climate change and its role in the problem, despite being the second largest emitter of
greenhouse gases.11
This path changed shortly before President Obama entered office, when the Supreme
Court of the United States decided Massachusetts v. EPA.12 Knowledge of the basics of the
Clean Air Act is necessary to understand the Court’s decision and the subsequent development of
the law surrounding greenhouse gases (GHGs). The Clean Air Act is intricate health and science
based environmental legislation that Congress passed originally in 1970 and has subsequently
amended on multiple occasions.13 The Clean Air Act addresses pollution from both stationary
and mobile sources.14 One of the main purposes of the Clean Air Act programs is to “protect and
enhance the quality of the Nation's air resources so as to promote the public health and welfare
and the productive capacity of its population.”15 The Act established multiple programs to
address climate change, including the National Ambient Air Quality Standards (NAAQS), the
Prevention of Significant Deterioration/New Source Review (PSD/NSR) program, the New
Source Performance Standards (NSPS), the acid rain control program, the Title V operating
10
Scott Victor Valentine, Reframing Global Warming: Toward a Strategic National Planning Framework,
in CRUCIAL ISSUES IN CLIMATE CHANGE & THE KYOTO PROTOCOL: ASIA & THE WORLD 31(2010) (discussing by
using Singapore as a case study, how, though the idea may appear “naïve” upon first encountering it, climate change
“can give rise to positive national economic benefits”).
11
CINNAMON PIÑON CARLARNE, CLIMATE CHANGE LAW & POLICY: EU & US APPROACHES 34-58 (2010)
(discussing the United States’ historical failure to act regarding climate change); Top 20 GHG Emitting Countries –
Breakdown by Sector, THE SHIFT PROJECT DATA PORTAL, http://www.tsp-data-portal.org/TOP-20-emitter-bysector#tspQvChart (last visited March 30, 2014) (listing 2010 emissions); China Overtakes U.S. in Greenhouse Gas
Emissions, N.Y. TIMES (June 20, 2007), http://www.nytimes.com/2007/06/20/business/worldbusiness/20ihtemit.1.6227564.html.
12
549 U.S. 497 (2007).
13
ROY S. BELDEN, CLEAN AIR ACT 11 (2d Ed. 2011).
14
42 U.S.C. § 7401 et seq. (2013); see also BELDEN, supra note 13, at 2-3.
15
42 U.S.C. § 7401(b)(1).
4
permit program, the mobile source emissions and fuel standards (hereinafter Mobile Source
Emissions Standards), and the National Emissions Standards for Hazardous Air Pollutants.16
The NAAQS and the Mobile Source Emissions Standards are the programs focused on in
this article. The NAAQS provide one of the key programs for addressing air pollution under the
Clean Air Act.17 Under the NAAQS, the EPA establishes standards for air pollutants that have
been classified by Congress or the EPA as “criteria pollutants.”18 These emissions standards are
set based on what the EPA considers an acceptable volume of the pollutant in the ambient air,
and the EPA then defers attainment of the standards to the states.19 The Mobile Source Emissions
Standards set standards for emissions from certain mobile sources and regulate fuel and fuel
additives.20 In order for a pollutant to be regulated under the Clean Air Act, it must be defined as
an “air pollutant.”21 Additionally, to be regulated under both the NAAQS and the Mobile Source
Emissions Standards, either Congress must mandate regulation of the specific air pollutant or the
EPA must make endangerment and cause and contribute findings.22 This means that the EPA has
determined that the air pollution endangers the public health and welfare and that the air
pollutant in question causes or contributes to the air pollution.23
In Massachusetts v. EPA, the pivotal case shifting the United States towards from action
in the fight against climate change, petitioners challenged the Environmental Protection
Agency’s (EPA) decision not to make endangerment findings for GHGs under the Mobile
16
article.
BELDEN, supra note 13, at 1-3, 88. A detailed discussion of all these programs is beyond the scope of this
17
BELDEN, supra note 13, at 11.
Id. at 11-12.
19
Id. If the states are not willing to comply, the EPA establishes a Federal Implementation Plan. Id. at 12.
20
Id. at 155.
21
42 U.S.C. § 7602(g); see also 42 U.S.C. §§ 7408 (a)(1) (“For the purpose of establishing national
primary and secondary ambient air quality standards, the Administrator shall . . . publish, and shall from time to time
thereafter revise, a list which includes each air pollutant . . . .”) (emphasis added) & § 7521(a)(1) (“The
Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this
section, standards applicable to the emission of any air pollutant . . . .”) (emphasis added).
22
See discussion infra Section III.B.
23
See discussion infra Section III.B.
18
5
Source Emission Standards.24 The Court held that the EPA’s denial of the petition to make
endangerment findings for GHGs was arbitrary and capricious because GHGs were an “air
pollutant” for the purposes of the Clean Air Act and the EPA statutorily could base its
endangerment findings only on scientific judgments of certainty and the effect of GHGs on
human health and public welfare.25 Two years after this decision, the EPA made the
Endangerment and Cause or Contribute Findings for GHGs26 under Section 202(a) – Mobile
Source Emission Standards – of the Clean Air Act (hereinafter Endangerment Findings for
Mobile Sources).27
On May 7, 2010, as a result of the Endangerment Findings for Mobile Sources, the
United States government “took its first formal step” in regulating climate change when the EPA
and the National Highway Traffic Safety Administration (NHTSA) issued the Tailpipe Rule,
which set GHG emissions and mileage standards for new light-duty vehicles.28 Under an existing
EPA policy,29 this regulation triggered the application of the Prevention of Significant
Deterioration (PSD) and Title V programs of the Clean Air Act to stationary sources that emit
24
Section 202(a) of the Clean Air Act found at 42 U.S.C. § 7521 et seq.
Massachusetts v. EPA, 549 U.S. 497, 528-30, 533-35 (2007).
26
Specifically, the finding is for “the mix of six long-lived and directly emitted greenhouse gases: carbon
dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and
sulfur hexafluoride (SF6). Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act; Final Rule, 74 Fed. Reg. 66496, 66497 (Dec. 15, 2009) [hereinafter Endangerment
Findings].
27
Id.
28
John M. Broder, U.S. Issues Limits on Greenhouse Gas Emissions from Cars, N.Y. TIMES (April 1,
2010), http://www.nytimes.com/2010/04/02/science/earth/02emit.html?_r=0; Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324 (May 7,
2010) (codified at 40 C.F.R. Parts 85, 86, & 600; 49 C.F.R. Parts 531, 533, 536, 537, & 538) [hereinafter Tailpipe
Rule].
29
The EPA has treated regulation of “any air pollutant” under the provisions of Title V and the PSD
Program to require regulation of any air pollutant already regulated under any other portion of the Clean Air Act.
See Requirements for Preparation, Adoption, and Submittal of Implementation Plans; Approval and Promulgation of
Implementation Plans, 45 Fed. Reg. 52676, 52711 (Aug. 7, 1980) (PSD program); Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule, 75 Fed. Reg. 31514, 31553–54 (June 3, 2010)
(codified at 40 C.F.R. Pts 51, 52, 70, et al.) [hereinafter Tailoring Rule] (discussing history of Title V regulation and
applicability).
25
6
GHGs.30 The EPA then promulgated the Tailoring Rule, which set up standards for application
of the PSD and Title V programs to GHGs.31
The United States federal government addressed climate change again when in President
Obama’s Climate Action Plan, released in June 2013, the Administration laid out its plans for
addressing “one of our greatest challenges of our time,” involving specific actions to adapt, cut
carbon pollution, and lead international efforts in combating climate change.32 After the release
of the Action Plan, President Obama and the EPA began work on creating regulations to limit
emissions of GHGs from existing power plants, instead of only under new power plants under
the PSD and Title V Programs.33 Other recent actions include the EPA’s release of a rule
reducing the allowable sulfur in gasoline,34 a climate change data website,35 and a strategy to cut
methane emissions.36
30
Tailoring Rule, 75 Fed. Reg. 31514, 31553-54.
See generally Tailoring Rule, 75 Fed. Reg. 31514. This rule has faced backlash for being arbitrary and
capricious on multiple bases. Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) cert.
granted in part, 134 S. Ct. 418, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct. 418, 187 L. Ed. 2d 279
(U.S. 2013) and cert. denied, 134 S. Ct. 418, 187 L. Ed. 2d 279 (U.S. 2013) and cert. granted in part, 134 S. Ct. 418,
187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert.
granted in part, 134 S. Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d
278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct.
468, 187 L. Ed. 2d 279 (U.S. 2013). The United States Supreme Court has granted a writ of certiorari of the
consolidated case to determine “‘[w]hether EPA permissibly determined that its regulation of greenhouse gas
emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources
that emit greenhouse gases.’” Util. Air Regulatory Grp. v. EPA., 571 U.S. __; 134 S. Ct. 418 (2013).
32
Executive Office of the President, The President’s Climate Action Plan 5, (June 2013),
http://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.
33
John M. Broder, Obama Readying Emissions Limits on Power Plants, N.Y. TIMES (June 19, 2013),
http://www.nytimes.com/2013/06/20/science/earth/obama-preparing-big-effort-to-curb-climate-change.html.
34
The final version of the rule in Federal Register is not yet available at the time of writing this, but a
version that has not been checked for accuracy is available on the EPA’s website at
http://www.epa.gov/otaq/documents/tier3/tier-3-fr-preamble-regs-3-3-14.pdf (last visited Mar. 30, 2014).
35
This website was unveiled on March 19, 2014 and is intended to “make climate data more accessible to
researchers and industries trying to adapt to global warming.” Carly Cody, White House Launches Climate Change
Data Website, NPR (Mar. 19, 2014), http://www.npr.org/blogs/itsallpolitics/2014/03/19/291420186/white-houselaunches-climate-change-data-website. The website is: data.gov/climate.
36
A
Strategy
to
Cut
Methane
Emissions,
WHITE
HOUSE
BLOG,
http://www.whitehouse.gov/blog/2014/03/28/strategy-cut-methane-emissions (last visited Mar. 30, 2014). This plan
was unveiled on March 28, 2014 and is part of the Obama Administration’s Climate Change Action Plan. Coral
Davenport, White House Unveils Plans to Cut Methane Emissions, N.Y. TIMES (Mar. 28, 2014),
http://www.nytimes.com/2014/03/29/us/politics/white-house-unveils-plans-to-to-cut-methane-emissions.html.
31
7
While the Obama Administration and United States federal law are certainly making a
more concerted effort against climate change, the question remains whether the EPA and
Administration are properly ignoring an existing statutory scheme to address climate change: the
National Ambient Air Quality Standards (NAAQS). A stated above, the NAAQS are a broad
scheme of health and welfare based standards that must be met nationally and on the local level
and have been a key in the fight against air pollution.37 In order to be subject to the NAAQS, an
air pollutant must be classified as a “criteria pollutant.”38 There is debate surrounding whether
the NAAQS would be useful or practical to address GHGs and many strong arguments against
their use.39 However, the language of the Clean Air Act’s requirements to be classified as a
criteria pollutant and to be regulated under the Mobile Source Emission Standards contain
largely the same language.40 The Endangerment Findings for the Mobile Source Emissions
Standards likely legally compel the EPA to classify GHGs as criteria pollutants and therefore to
regulate them under the NAAQS.41 However, regardless of its legal necessity, in order for the
EPA to actually be forced to make an endangerment finding, members of the public would have
to litigate the issue. Though the EPA may not have statutory authority to consider matters outside
37
BELDEN, supra note 13, at 11.
42 U.S.C. §§ 7408-09 (2014).
39
Robin Bravender, Groups Petition EPA to Set Greenhouse Gas Limits under Clean Air Act, N.Y. TIMES
(Dec. 2, 2009), http://www.nytimes.com/gwire/2009/12/02/02greenwire-groups-petition-epa-to-set-greenhouse-gaslimi-40485.html.
40
Compare 42 U.S.C. § 7408 (a)(1) (“For the purpose of establishing national primary and secondary
ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall
from time to time thereafter revise, a list which includes each air pollutant--(A) emissions of which, in his judgment,
cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; (B)
the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and (C) for
which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality
criteria under this section.”), with 42 U.S.C. § 7521(a)(1) (“The Administrator shall by regulation prescribe (and
from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of
any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his
judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or
welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under
subsection (d) of this section, relating to useful life of vehicles for purposes of certification), whether such vehicles
and engines are designed as complete systems or incorporate devices to prevent or control such pollution.”).
41
See discussion infra Part III; 42 U.S.C. § 7409.
38
8
of the effect on public health and welfare,42 states, interest groups, and other members of the
public should consider policy before trying to force the EPA to regulate under a scheme that may
not prove useful.
This article addresses why the EPA is likely legally compelled to classify GHGs as
criteria pollutants, but argues that the public should not force the issue, as the NAAQS are not
properly suited to address climate change and the attempt would funnel federal, state, and private
resources away from more useful regulations. Part I discusses the basic physical science behind
climate change and its effects on human health and public welfare so as to provide the reader
with a more informed analysis of the area of the law. Next, Part II discusses in detail the holdings
and findings of Massachusetts v. EPA and the Endangerment Findings for Mobile Sources. Then,
Part III discusses why an endangerment finding for the NAAQS is likely compelled based upon
the statutory language of the Clean Air Act, findings of the Court and EPA, and science. Finally,
Part IV discusses why the public should not try to force the EPA to regulate GHGs under the
NAAQS because the application of the NAAQS to GHGs is impractical, despite the apparent
legal necessity.
I.
A (VERY) BASIC OVERVIEW OF THE SCIENCE AND EFFECTS OF CLIMATE CHANGE
Of course, an in depth analysis of the climate science and the existing and potential effects of
global climate change is beyond the scope of this article. However, a basic understanding of
climate change to understand the decision of the Supreme Court in Massachusetts v. EPA, the
Endangerment Findings for Mobile Sources, and whether the regulation of GHGs under the
NAAQS is legally compelled and practical is needed.
42
Massachusetts, 549 U.S. at 505, 533-35.
9
A.
The Physical Science of Climate Change
Understanding the greenhouse effect is the basis for understanding global climate
change.43 The greenhouse effect is a natural process wherein GHGs in the atmosphere absorb
infrared energy reflected by the earth and by doing so, heat the planet.44 The greenhouse effect
keeps the global temperature warm enough to be habitable for life as it has evolved on earth.45
Water vapor and carbon dioxide are the two main naturally occurring GHGs.46 Water vapor does
not stay long in the atmosphere and globally does not appear to be directly anthropogenically
affected.47 However, as the atmosphere warms, it can hold more water, which affects cloud
formation, and clouds in turn can absorb and reflect radiation from the sun and the earth.48
However, GHGs are also emitted from human activities, which has greatly increased the
levels of GHGs in the atmosphere beyond natural levels and contributed to the warming of the
earth.49 The primary cause of human release of GHGs is the burning of fossil fuels.50 The main
global activities that release GHGs and their corresponding global percentages from 2010 are:
agriculture, forestry and other land use (23 percent); electricity and heat production (20 percent);
industry (18 percent); road transportation (10.2 percent); residential buildings (4.4 percent); other
transportation (3.9 percent); waste (2.9 percent); and commercial buildings (1.7 percent).51 The
most significant GHG that results from human activities is carbon dioxide.52 In the United States,
43
44
SCOTT D. DEATHERAGE, CARBON TRADING LAW AND PRACTICE 5 (2011).
Id.; ARNOLD W. REITZE, JR., AIR POLLUTION CONTROL & CLIMATE CHANGE MITIGATION LAW 463 (2d
Ed. 2010).
45
DEATHERAGE, supra note 43, at 5.
Id.
47
REITZE, supra note 44, at 463.
48
Id.
49
Id. at 464-65.
50
EPA,
The
Causes
of
Climate
Change,
EPA,
http://www.epa.gov/climatechange/science/causes.html#greenhouseeffect (last visited Mar. 30, 2014).
51
For a more complete and detailed list, see IPCC WORKING GROUP III, Introductory Chapter, in
Mitigation of Climate Change, IPCC, 20 (Apr. 12, 2014), http://report.mitigation2014.org/drafts/final-draftpostplenary/ipcc_wg3_ar5_final-draft_postplenary_chapter1.pdf.
52
DEATHERAGE, supra note 43, at 5.
46
10
in 2012, carbon dioxide constituted 82% of GHG emissions.53 When emissions of GHGs are
measured, they are measured based on their global warming potential (GWP),54 which is then
translated into its CO2 equivalent.55 The other main GHGs are methane, nitrous oxide, and
fluorinated gases.56 Though released in lower quantities, these other gases are problematic
because they have higher GWPs than CO2; for example, sulfur hexafluoride has a GWP of
23,900.57
The United States is the second largest emitter of GHGs in the world, second only to
China.58 Up until 2006, the United States was the world’s largest emitter of GHGs.59
B. The Human Health, Public Welfare, and Environmental Effects of Climate Change60
Climate change is unequivocal and that this change is anthropogenically caused is
virtually certain.61 In March 2014, the IPCC’s report concluded that there are already significant
observable negative impacts as a result of climate change.62 These impacts have been observed
on “physical, biological, and human systems.”63 In a summary of finding for the Report, the
IPCC described the following observable effects:
Many regions have experienced warming trends and more frequent hightemperature extremes. Rising temperatures are associated with decreased
53
EPA, Overview of Greenhouse Gases, EPA, http://www.epa.gov/climatechange/ghgemissions/gases.html
(last visited March 30, 2014).
54
Carbon dioxide has a GWP of 1. A GHGs GWP is based on its radiative force and expected lifetime in
the atmosphere. REITZE, supra note 44, at 463.
55
Id.
56
Overview of Greenhouse Gases, supra note 53.
57
EPA,
Emissions
of
Fluorinated
Gases,
EPA,
http://www.epa.gov/climatechange/ghgemissions/gases/fgases.html (last visited March 30, 2014).
58
Top 20 GHG Emitting Countries, supra note 11; China Overtakes U.S., supra note 11.
59
China Overtakes U.S., supra note 11.
60
The discussion in this Subsection relies on the most recent reports of the IPCC. In its technical summary,
the IPCC indicated that the number of articles analyzing climate change impacts, adaptation, and vulnerabilities had
more than doubled from the period of 2005-2010 (since its last report), which allows for a better report and basis for
policymaking. IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability: Technical Summary 2 (Mar.
31, 2014), available at http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-TS_FGDall.pdf.
61
IPCC, Human Influence, supra note 1, at 1.
62
IPCC, Volume Wide Frequently Asked Questions 2 (Mar. 31, 2014), http://ipccwg2.gov/AR5/images/uploads/WGIIAR5-Volume-FAQs_FGD.pdf.
63
Id.
11
snowpack, and many ecosystems are experiencing climate-induced shifts in the
activity, range, or abundance of the species that inhabit them. Oceans are also
displaying changes in physical and chemical properties that, in turn, are affecting
coastal and marine ecosystems such as coral reefs, and other oceanic organisms
such as mollusks, crustaceans, fishes, and zooplankton. Crop production and
fishery stocks are sensitive to changes in temperature. Climate change impacts are
leading to shifts in crop yields, decreasing yields overall and sometimes
increasing them in temperate and higher latitudes, and catch potential of fisheries
is increasing in some regions but decreasing in others. Some indigenous
communities are changing seasonal migration and hunting patterns to adapt to
changes in temperature.64
The summary indicated that though some regions will see some benefits due to climate change,
the overall impact is negative.65
Specifically in the United States and North America, there have been significant observed
negative impacts.66 In regards to public health in North America, the IPCC reported that there
have already been observed increases in human mortality and morbidity, due largely to increase
in extreme heat waves.67 Human health is expected to be further impacted by a continuing
increase in heat waves and extreme weather events.68 The Report also indicated that increase in
infectious diseases, air pollution, and airborne pollen is likely (with moderate confidence).69 The
Report also stated that North American ecosystems are especially vulnerable to climate
extremes, and the increasing temperatures, carbon dioxide concentrations, and rising sea levels
are imposing rising levels of stress on the ecosystems.70 The IPCC noted that the North
American economy and infrastructure are vulnerable to the effects of climate change, and these
impacts can already be seen due to rising sea levels; higher occurrence of extreme weather
64
Id.
Id.
66
IPCC North America, supra note 5.
67
Id. at 4.
68
Id. at 4.
69
Id. at 4-5.
70
Id. at 4.
65
12
events, such as droughts, storms, and heat waves; and changes in temperature and precipitation.71
The Report stated that the infrastructure, if not modified, is at significant risk due to extreme
weather events.72
These are only a partial list of the observed list of impacts on North America. The IPCC
Report lays forth the effects in more detail and discusses the significant negative expected impact
of climate change in the future.73
II.
THE LEGAL BACKGROUND : MASSACHUSETTS V. EPA AND THE ENDANGERMENT FINDINGS
Before the Obama Administration’s recent efforts to combat climate change, the United
States had largely ignored the global issue.74 In 1998, Vice President Al Gore signed the Kyoto
Protocol in an attempt to encourage the United States to join the global efforts to fight climate
change.75 However, Congress refused to ratify the Protocol because of economic concerns and
global competitiveness.76 The policy regarding climate change under the presidency of George
W. Bush was just that, policy.77 It lacked any legal substance and relied on voluntary and nonbinding goals.78 Additionally, the George W. Bush Administration made significant efforts to
roll back environmental laws, even repudiating the Kyoto Protocol.79 This failure to enact any
substantive laws or regulations regarding climate change shifted after the Supreme Court decided
in a pivotal case that the term “air pollutant” in the Clean Air Act applied to GHGs.80
71
Id. at 5.
Id.
73
See generally id. (discussing North America observed impacts, vulnerabilities, future impacts, and
suggested adaptation measures).
74
CARLARNE, supra note 11, at 35.
75
Id. at 30.
76
Id.
77
Id. at 37-38.
78
Id. at 39.
79
Id. at 31, 34 n.39.
80
Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
72
13
A. Massachusetts v. EPA
i.
Background
In 2007, in the last years of the Bush Administration, the Supreme Court ruled on a
lawsuit based on a rulemaking petition filed in 1999 by 19 non-governmental groups seeking to
compel the EPA to regulate GHGs under Section 202(a) of the Clean Air Act – the Mobile
Source Emission Standards.81 Though the EPA had issued a memorandum in 1998 stating that
carbon dioxide was an “air pollutant” under the Clean Air Act, EPA’s general counsel in the
Bush Administration released a memorandum in 2003 concluding that carbon dioxide was not an
air pollutant for purpose of the Clean Air Act.82 Additionally, the EPA formally denied the
rulemaking petition in September 2003.83 The EPA argued that it could not regulate GHG
emissions under Section 202(a) of the Clean Air Act because it did not have statutory authority.84
In addition, the EPA argued that even if it had statutory authority, it should not regulate GHGs
under Section 202(a) because “President Bush has established a comprehensive global climate
change policy” and regulating GHGs would conflict with the foreign policy power of the
president.85
The organizations and intervenor states and local governments sought review of the
decision on rulemaking in the United States Court of Appeals for the District of Columbia
Circuit.86 The D.C. Circuit denied the petition for review, stating that the EPA properly exercised
81
Id. at 510.
BELDEN, supra note 13, at 145-46; Memorandum from Jonathan Z. Cannon to EPA Adm’r Carol M.
Browner, EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (Apr. 10, 1998);
Memorandum from Robert E. Fabricant to EPA Acting Adm’r Marianne L. Horinko, EPA’s Authority to Impose
Mandatory Controls to Address Global Climate Change Under the Clean Air Act (Aug. 28, 2003).
83
68 Fed. Reg. 52922 (Sept. 8, 2003).
84
Id. at 52925.
85
Id.
86
Massachusetts, 549 U.S. at 514.
82
14
its discretion.87 The Supreme Court granted the petitioners’ and intervenors’ writ of certiorari to
decide whether they had standing to challenge the EPA’s denial of the petition for rulemaking
and the substantive issue of whether the EPA had authority to regulate GHGs under Section
202(a) of the Clean Air Act.88
ii.
The Court’s Rulings
a. The Petitioners Have Standing
The Court first held that the petitioners and intervenors had standing to sue the EPA for
denying its rulemaking petition.89 In discussing that the petitioners had met the injury
requirement of standing, the Court noted that “[t]he harms associated with climate change are
serious and well recognized.”90 The Court observed that an NRDC Report that the EPA found to
be “‘an objective and independent assessment of the relevant science’ . . . identifies a number of
environmental changes that have already inflicted significant harms.”91 The Court also stated that
the sea level rise had already begun to cover some of Massachusetts’ land.92 The Court noted that
the severity of the loss of land would only increase over the next century, which could cause
millions of dollars of damage to Massachusetts just for remediation.93 The Court did indicate that
it was basing its findings on the uncontested affidavits of the petitioners.94 Nevertheless, these
statements show the Court’s willingness to recognize the existing and future effects of climate
change as injuries to the public.95
87
Id.
Id. at 505-06.
89
Id. at 516-26.
90
Id. at 521.
91
Id. The harms in the Report mentioned specifically in the Court’s decision were “‘the global retreat of
mountain glaciers, reduction in snow-cover extent, the earlier spring melting of ice on rivers and lakes, [and] the
accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years.’” Id.
92
Id. at 522.
93
Id. at 522-23.
94
Id. at 526.
95
The Court was, however, strongly divided on this case, including the standing issue. The majority
opinion was written by Justice Stevens and four other justices dissented. Id. at 504, 535. Chief Justice Roberts issued
88
15
b. Greenhouse Gase Are an “Air Pollutant” Under the Clean Air Act
The most important portion of the decision, as relating to an analysis of whether an
endangerment finding for GHGs is necessary under the NAAQS, is the Court’s holding that
GHGs qualify as an “air pollutant” under the Clean Air Act.96 As a threshold issue regarding the
scope of judicial review of the EPA’s actions, the Court held that the Clean Air Act expressly
provided for review of the denial of the petition for rulemaking under 42 U.S.C. § 7607 (b)(1) &
(d)(9). The Court noted that such review was “‘extremely limited’ and ‘highly deferential.’”97
The first question that the Court addressed on the merits was whether Section 202(a) of
the Clean Air Act authorized “the EPA to regulate greenhouse gas emissions from new motor
vehicles in the event that it forms a ‘judgment’98 that such emissions contribute to climate
change.”99 In deciding that greenhouse gases are unambiguously “air pollutants” for the Clean
Air Act, the Court looked to the Act’s definition of “air pollutant.”100 The Act defines an “air
pollutant” as “any air pollution agent or combination of such agents, including any physical,
chemical, biological . . . . substance or matter which is emitted into or otherwise enters the
a dissenting opinion on the issue of standing, stating in the relevant portion that any alleged loss of coastal land by
Massachusetts is not concrete, particularized, or imminent as is required for Article III standing. Id. at 541-42.
96
Id. at 532.
97
Id. at 527-28 (quoting Nat’l Customs Brokers & Forwarders Ass’n of Am., Inc. v. United States, 883
F.2d 93, 96 (C.A.D.C. 1989)).
98
This quotation by the Court of the word “judgment,” though not cited in the opinion, is a quote of the
relevant statute, which states:
The Administrator shall by regulation prescribe (and from time to time revise) in accordance with
the provisions of this section, standards applicable to the emission of any air pollutant from any
class or classes of new motor vehicles or new motor vehicle engines, which in his judgment
cause, or contribute to, air pollution which may reasonably be anticipated to endanger public
health or welfare.
42 U.S.C. § 7521(a)(1) (emphasis added).
99
Massachusetts, 549 U.S. at 529.
100
Id. at 528-29.
16
ambient air.”101 The Court stressed the definition’s express use of the word any, which means
that the term “air pollutant” “embraces all airborne compounds of whatever stripe.”102 The Court
held that the statute unambiguously includes specific GHGs because they “are without a doubt
‘physical [and] chemical . . . substance[s] which [are] emitted into . . . the ambient air.’”103
Interestingly, the Court also discussed in a footnote that the phrase “ambient air” in the
statute did not limit the EPA to regulating air pollution agents near the earth.104 The Court stated:
[The] EPA’s distinction [between local and global atmosphere pollutants],
however, finds no support in the text of the statute, which uses the phrase “the
ambient air” without distinguishing between atmospheric layers. Moreover, it is a
plainly unreasonable reading of a sweeping statutory provision designed to
capture “any physical, chemical . . . substance or matter which is emitted into or
otherwise enters the air.”105
The Court observed that the parties also did not dispute that GHGs are emitted into the ambient
air.106
The EPA argued that Congress’s actions and deliberations after enacting the Clean Air
Act, which did not include a command to EPA to regulate GHGs, showed Congressional intent
that the EPA not regulate GHGs.107 The Court held that Congress’s postenactment actions and
inactions, and decisions not to regulate GHGs did not change the fact that the statute’s definition
of “air pollutant” unambiguously included GHGs.108 The Court stated that the subsequent
decisions of Congress not to act regarding GHGs under the Clean Air Act did not indicate that
101
42 U.S.C. § 7602(g). “Such term includes any precursors to the formation of any air pollutant, to the
extent the Administrator has identified such precursor or precursors for the particular purpose for which the term ‘air
pollutant’ is used.” Id.
102
Massachusetts, 549 U.S. at 529.
103
Id. (edits in original).
104
Id. at 529 n.26.
105
Id. (quoting 42 U.S.C. § 7602(g)) (some emphasis added).
106
Id.
107
Id.
108
Id. at 529-30.
17
Congress intended that EPA did not have authority to regulate GHGs under Congress’s most
recent amendments of Section 202(a)(1).109
Additionally, the Court held that Congress’s delegation of the setting of mileage
standards to the Department of Transportation did not alter the EPA’s obligation under the Clean
Air Act to regulate GHGs.110 The Clean Air Act’s mandate to the EPA required it to address
GHGs as an “air pollutant” and this joint responsibility showed Congress’s intent “to promote
interagency collaboration and research to better understand climate change.”111 The collaboration
of the different statutes and agencies would aid “thoughtful regulation.”112 Similarly, the Court
held that the Department of Transportation’s requirement to set mileage standards did not
obviate the EPA’s duty to protect the public’s health and welfare.113 Instead, the Court held that
the two agencies should work towards a consistent standard with their differing obligations in
mind.114
In its argument against regulating GHGs, the EPA had relied upon FDA v. Brown &
Williamson Tobacco Corporation, wherein the Court upheld the FDA’s refusal to regulate
tobacco products as a “drug” under the Food, Drug, and Cosmetic Act.115 The Court
distinguished that case on two bases.116 First, the Court noted that in Brown, regulating tobacco
products as a drug would have required a complete ban on tobacco products, whereas in
Massachusetts, the Court would not be taking such extreme measures and would only be
regulating emissions.117 Further, banning tobacco products would clash “with the ‘common
109
Id.
Id. at 530-32.
111
Id. at 530.
112
Id.
113
Id. at 531-32.
114
Id. at 532.
115
529 U.S. 120, 133 (2000); Massachusetts, 549 U.S. at 530.
116
Id at 530-31.
117
Id. at 531.
110
18
sense’ intuition that Congress never meant to remove those products from circulation,” whereas
regulating emission of GHGs is not counterintuitive at all.118 Additionally, the Court discussed
that in Brown, there were consistent congressional enactments that made sense only if the FDA
did not have authority to regulate tobacco and consistent statements made by the FDA that it did
not have authority to regulate tobacco, but in Massachusetts, the EPA could not make parallel
claims to those in Brown regarding its regulation of GHGs.119 Instead, no congressional
enactments contradicted EPA’s power to regulate GHGs and the EPA had historically
affirmatively stated that it had authority to regulate GHGs.120 Therefore, the Court held that the
EPA’s reliance on Brown was misplaced and did not change that the Clean Air Act mandated the
EPA to regulate GHGs as air pollutants.121
Finally, the Court noted that Congress intended “regulatory flexibility” in enacting the
Clean Air Act and Section 202(a)(1) specifically.122 The Court stated that the broad language of
the Act shows the enactors’ intent to allow the Act to adapt to changing circumstances and
advancements in science and scientific knowledge in order to avoid rendering the Act
“obsolete.”123
Therefore, the Court held that the EPA had authority to regulate GHG emissions from
motor vehicles under Section 202(a)(1) if it made the proper endangerment findings.124
c. The EPA Must Consider Only Scientific Judgments in Deciding Whether to
Make an Endangerment Finding
The alternative basis that the EPA argued prevented it from regulating GHGs under
Section 202(a)(1) of the Clean Air Act was that it would be unwise to do so.125 However, the
118
Id. (quoting Brown, 529 U.S. at 133).
Id.
120
Id.
121
Id. at 530-31.
122
Id. at 532.
123
Id.
124
Id.
119
19
Court held that this justification was “divorced from the statutory text.”126 The Court stated that
though the language of the statute required the Administrator to make a “judgment,” this
judgment must be based on “whether an air pollutant ‘cause[s], or contribute[s] to, air pollution
which may reasonably be anticipated to endanger public health or welfare.”127 The use of the
word “judgment” did not give the Administrator “a roving license” to make decisions on nonstatutory bases.128 The Court noted that, though the EPA has large levels of discretion in making
regulations, when the EPA responds to a petition for rulemaking, “its reasons for action or
inaction must conform to the authorizing statute.”129 The Court held:
[The] EPA can avoid taking further action only if it determines that greenhouse
gases do not contribute to climate change or if it provides some reasonable
explanation as to why it cannot or will not exercise its discretion to determine
whether to do so.130
The Court indicated that this may constrain the EPA’s discretion in pursuing other priorities of
the agency or President, but that this was the statute’s design.131
The Court discussed that the justifications for making a reasoned decision on whether to
regulate GHGs must be based on scientific judgments whether GHG emissions contribute to
climate change.132 The decision could not be based on extra-statutory considerations, such as
whether “regulating greenhouse gases might impair the President’s ability to negotiate” with
other nations, that other policies in place “provide an effective response to the threat of global
warming,” or that using Section 202(a)(1) would create an “‘inefficient, piecemeal approach’” to
125
68 Fed. Reg. at 52925; see also Massachusetts, 549 U.S. at 532.
Massachusetts, 549 U.S. at 532.
127
Id. at 532-33 (quoting 42 U.S.C. § 7521(a)(1)).
128
Id. at 533.
129
Id.
130
Id.
131
Id.
132
Id. at 533-34.
126
20
regulating climate change.133 The Court also stated that “residual uncertainty” “surrounding
various features of climate change . . . is irrelevant.”134 It reasoned that “uncertainty . . . so
profound that it precludes EPA from making a reasoned judgment as to whether greenhouse
gases contribute to global warming” could be a basis for refusal to make an endangerment
finding, but that the “EPA must say so.”135
The Court did not require that the EPA make an endangerment finding, but held that the
agency’s denial of the petitioners’ petition was arbitrary and capricious because it did not offer a
reasoned explanation based upon the statute.136 The Court therefore remanded to the EPA to
make a reasoned decision consistent with the opinion.137
B. The EPA’s Endangerment Findings for Mobile Sources
About two years after the Court’s decision in Massachusetts and a change in the
presidency, the EPA released its Final Rule of the Endangerment and Cause or Contribution
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (Endangerment
Findings for Mobile Sources).138 The Endangerment Findings for Mobile Sources is a dense, 50page rule and a minute analysis of its details is beyond the scope of this article.139 However, a
general analysis of the Endangerment Findings for Mobile Sources is necessary to determine
whether the EPA is compelled to make an endangerment finding for the NAAQS. Though the
Endangerment Findings for Mobile Sources state that the findings therein are for the purposes of
Section 202(a) of the Clean Air Act, logic dictates that many of the findings are relevant for the
NAAQS and do not lose their factual basis simply because the NAAQS program is a different
133
Id. at 533.
Id. at 534.
135
Id.
136
Id. at 534-35.
137
Id.
138
Endangerment Findings, 74 Fed. Reg. 66496, 66497 (Dec. 15, 2009); President Barack Obama, WHITE
HOUSE, http://www.whitehouse.gov/administration/president-obama (last visited March 31, 2014).
139
See Endangerment Findings, 74 Fed. Reg. 66496.
134
21
section of the Clean Air Act.140 Additionally a brief discussion of the Court of Appeals for the
District of Columbia’s decision to uphold the Endangerment Findings shows how and why the
Endangerment Findings were upheld and is important because the Supreme Court is not
reviewing these Findings, as it has denied certiorari on the issue.141
i.
The Substance of the Endangerment Findings142
The Endangerment Findings for Mobile Sources were limited to the mix of six specific
“long-lived and directly emitted” GHGs: carbon dioxide (CO2), methane (CH4), nitrous oxide
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).143
The Findings concluded that these GHGs “in the atmosphere may reasonably be anticipated both
to endanger public health and to endanger public welfare.”144 The Administrator also found that
the emissions of the listed GHGs from transportation sources “contribute to the total greenhouse
gas air pollution, and thus to the climate change problem.”145 The primary basis for the
Administrator’s decision was assessments by the United States Global Climate Research
Program, the IPCC, and the National Research Council.146 The Findings focused on the United
140
Id. at 66499.
Coal. for Responsible Regulation, Inc. v. EPA., 684 F.3d 102 (D.C. Cir. 2012) cert. granted in part, 134
S. Ct. 418, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct. 418, 187 L. Ed. 2d 279 (U.S. 2013) and cert.
denied, 134 S. Ct. 418, 187 L. Ed. 2d 279 (U.S. 2013) and cert. granted in part, 134 S. Ct. 418, 187 L. Ed. 2d 278
(U.S. 2013) and cert. granted in part, 134 S. Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S.
Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d 278 (U.S. 2013) and
cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct. 468, 187 L. Ed. 2d
279 (U.S. 2013). The United States Supreme Court has granted a writ of certiorari of the consolidated case solely to
determine “‘[w]hether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor
vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse
gases.’” Util. Air Regulatory Grp. v. EPA, 571 U.S. __; 134 S. Ct. 418 (2013).
142
These findings are laid out in detail in this section so as to provide a basis for understanding the depth of
the EPA’s findings and why the Endangerment Findings for Mobile Sources should be applied to the parallel
requirements for classification as a criteria pollutant under the NAAQS. See discussion infra Section III.B.
143
Endangerment Findings, 74 Fed. Reg. at 66497.
144
Id.
145
Id. at 66499.
146
Id. at 66497.
141
22
States, but also considered other world regions because the effects on other world regions can
negatively impact the United States.147
The EPA found ample support for its finding that GHGs in the atmosphere may
reasonably be anticipated to impact public health and welfare.148 In reference to the impact on
public health, first, the EPA found that the presence of GHGs in the atmosphere and the
corresponding climate change will affect the quality of air negatively by increasing ozone
levels.149 The Findings indicated that the increase in average temperatures had a consequential
increase in morbidity and mortality, due in part to increase in heat waves.150 Additionally, the
EPA found that anthropogenic climate change will likely increase the severity and intensity of
extreme weather events, such as hurricanes and floods.151 The EPA noted that even a small
increase in the severity of these events could have serious adverse effects.152 Additionally, the
Findings stated that some evidence showed that climate change and carbon concentrations could
“lead to changes in aeroallergens that could increase the potential for allergenic illnesses.”153 The
EPA also noted that, though uncertain, climate change may increase pathogen borne diseases.154
Finally, in making its decision, the EPA “place[d] weight” on the fact that these public health
affects would affect specific groups most heavily, namely children, the elderly, and the poor.155
The EPA also addressed the impact of GHGs in the atmosphere and climate change on
the public welfare.156 The EPA found support for its Endangerment Finding in considering “how
elevated concentrations of the well-mixed greenhouse gases and associated climate change affect
147
Id.
Id. at 66516-36.
149
Id. at 66497.
150
Id.
151
Id. at 66497-98.
152
Id. at 66497.
153
Id. at 66498, 66525.
154
Id.
155
Id.
156
Id.
148
23
public welfare by evaluating numerous and far-ranging risks to food production and agriculture,
forestry, water resources, sea level rise and coastal areas, energy, infrastructure, and settlements,
and ecosystems and wildlife.”157 The Findings stated that the “most serious potential adverse
effects are the increased risk of storm surge and flooding in coastal areas from sea level rise and
more intense storms.”158 The EPA also discussed the impact on hydropower resources; the
vulnerability of industry, infrastructure, and settlements; and the adverse impact on biodiversity
and ecosystems.159 The EPA did note that there was a potential net increase for certain crops in
the near future, but found that there would be an overall adverse effect on agriculture and
production over time, with substantial possibilities of significant crop failures.160 Similarly, the
EPA discussed that in the near future in certain parts of the country, climate change will cause a
beneficial impact on forest growth and productivity, but that these benefits are outweighed by
already observed increase in wildfires and spread of pests and disease.161 The EPA found that
these observed and future impacts served a strong basis for finding that climate change and the
presence of GHGs in the atmosphere would adversely impact the public welfare.162
In addition, in order to regulate under Section 202(a) of the Clean Air Act, the EPA had
to make a finding that GHGs from mobile sources caused or contributed to the climate change
problem found to adversely affect the public health and welfare.163 The EPA found that the six
well-mixed GHGs contribute to the climate change problem.164 In order to determine whether
these GHGs emitted from mobile sources contributed to the climate change problem, the EPA
compared the emissions of the GHGs from Section 202(a) emissions sources with the total GHG
157
Id.
Id.
159
Id.
160
Id.
161
Id.
162
Id.at 66498-99.
163
42 U.S.C. § 7521; see Endangerment Findings, 74 Fed. Reg. at 66499.
164
Endangerment Findings, 74 Fed. Reg. at 66499.
158
24
emissions in the United States and total GHG emissions globally.165 The EPA noted that Section
202(a) source emissions amounted to 23 percent of the total United States well-mixed GHG
emissions and 4 percent of total global well-mixed GHG emissions.166 The EPA found based on
this that GHG emissions from Section 202(a) “clearly” contribute to GHG concentrations.167 The
EPA noted that the total emissions from these sources amounted to more GHG emissions than
any other individual country except China, Russia, and India.168 Additionally, it observed that
202(a) sources emitted the second most GHGs in the United States, second only to electricity
generation.169 The EPA also indicated that it agreed with the Supreme Court’s judgment that
Section 202(a) sources “make a meaningful contribution” to GHG concentrations and climate
change.170
This Endangerment Finding for Mobile Sources did not place any substantive
requirements on industries.171 The finding, however, formed the basis for the Tailpipe Rule172
and subsequently led to the application of the PSD and Title V Programs of the Clean Air Act to
GHGs emissions.173
165
Id.
Id.
167
Id.
168
Id.
169
Id.
170
Id.
171
EPA, Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of
the Clean Air Act, EPA, http://www.epa.gov/climatechange/endangerment/ (last visited Mar. 31, 2014).
172
The Tailpipe Rule sets emissions and mileage standards for certain mobile sources “that would translate
to a combined fuel economy average for new vehicles of 35.5 miles per gallon by 2016.” Broder, supra note 28;
Tailpipe Rule, 75 Fed. Reg. 25324 (May 7, 2010). For updated versions of the rules and fact sheets regarding the
rules for both light-duty and heavy-duty vehicles, see EPA, Transportation and Climate: Regulations & Standards:
Light-Duty, EPA, http://www.epa.gov/otaq/climate/regs-light-duty.htm#new1 (last visited May 4, 2014) and EPA,
Transportation and Climate: Regulations & Standards: Heavy-Duty, EPA, http://www.epa.gov/otaq/climate/regsheavy-duty.htm (last visited May 4, 2014).
173
Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy
Standards; Final Rule, 75 Fed. Reg. 25324; Coal. for Responsible Regulation, Inc. v. EPA., 684 F.3d 102, 129-44
(D.C. Cir. 2012) (upholding application of the PSD and Title V Programs to GHG emissions).
166
25
ii.
Judicial Review of the Endangerment Findings: Coalition for Responsible
Regulation, Inc. v. EPA
In a lengthy decision addressing challenges to many aspects of the EPA’s regulation of
GHGs, the Court of Appeals for the District of Columbia upheld the Endangerment Findings for
Mobile Sources as not arbitrary or capricious, or an abuse of discretion.174 The court first held
that the EPA properly restricted its decision on scientific judgments and did not consider policy
considerations, such as the impact on beneficial sources that emit GHGs.175 Next the court held
that the Endangerment Findings for Mobile Sources had adequate scientific support; the use of
peer-review assessments was proper and independent research by the EPA was not necessary.176
The court also indicated that the residual uncertainty of climate change did not dampen the
adequacy of the scientific support for the EPA’s findings.177 The court next held that the EPA did
not need to make a judgment regarding what threshold limit of GHG concentrations would
adversely impact public health and welfare.178 The court observed that this was unnecessary
statutorily and the “precautionary thrust” of the Clean Air Act further supported this holding.179
For these reasons – and others irrelevant to this article – the D.C. Circuit Court of
Appeals upheld the Endangerment Findings for Mobile Source provisions.180 The Court of
Appeals denied the petitioners’ petition for an en banc rehearing, though some judges
dissented.181 Additionally, the Supreme Court denied certiorari on the issue of whether the
174
Coalition, 684 F.3d at 117.
Id. at 117-19.
176
Id. at 119-20.
177
Id. at 120-22.
178
Id. at 122-23.
179
Id. at 123.
180
Id. at 117-26.
181
See generally Coal. for Responsible Regulation, Inc. v. EPA., No. 09-1322, 2012 WL 6621785 (D.C.
Cir. Dec. 20, 2012).
175
26
Endangerment Findings for Mobile Sources was arbitrary and capricious, meaning the
conclusions in the Endangerment Findings will not be reviewed by the Court.182
III.
MASSACHUSETTS V. EPA AND THE ENDANGERMENT FINDINGS FOR MOBILE SOURCES
LIKELY LEGALLY COMPEL THE EPA TO MAKE AN ENDANGERMENT FINDING FOR
GREENHOUSE GASES UNDER THE NAAQS
The Supreme Court’s holdings and statements in Massachusetts v. EPA and the EPA’s
findings that form the basis of its Endangerment Findings for Mobile Sources create a legal
backdrop that likely compels a finding of endangerment for GHGs under the NAAQS.183 Though
the EPA stated that its findings for the Endangerment Findings for Mobile Sources applied only
to Section 202(a) of the Clean Air Act, logic dictates that many of the findings apply to the
necessary factual basis for an endangerment finding under the NAAQS, due to the identical
language in portions of the relevant statutory sections.184 A step-by-step comparison of the
requirements for the different endangerment findings show the likelihood that the six well-mixed
GHGs legally must be classified as a criteria pollutant and therefore be subject to the NAAQS.185
A. The Definition of “Air Pollutant” in Massachusetts v. EPA Applies to the Entire
Clean Air Act
As a threshold issue in determining whether an endangerment finding can be made under
either the NAAQS or Section 202(a), the EPA must first determine whether the substance in
question is an “air pollutant” as defined by the Clean Air Act.186 The Clean Air Act has a
182
Util. Air Regulatory Grp. v. EPA., 571 U.S. __; 134 S. Ct. 418 (2013) (granting certiorari for the sole
issue of “'Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor
vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse
gases’”).
183
See discussion infra Subparts III.A-C.
184
Endangerment Findings, 74 Fed. Reg. 66496, 66497 (Dec. 15, 2009); see also discussion infra Subpart
III.B.
185
This discussion only relates to the legal aspects of the classification of GHGs as criteria pollutants. See
discussion infra Part IV for a discussion of the policy and practical concerns of this classification.
186
42 U.S.C. § 7408 (a)(1) (“For the purpose of establishing national primary and secondary ambient air
quality standards, the Administrator shall . . . publish, and shall from time to time thereafter revise, a list which
includes each air pollutant . . . .”) (emphasis added); § 7521(a)(1) (“The Administrator shall by regulation prescribe
27
definitional section that defines the term “air pollutant” for the entire Act.187 As discussed, in
Massachusetts v. EPA, the Supreme Court held that the six well-mixed GHGs unambiguously
fell into the definition of “air pollutant” for the Clean Air Act.188 Therefore, for the purposes of
the NAAQS, this threshold determination that the six well-mixed GHGs constitute an “air
pollutant” has already been answered affirmatively and unambiguously. Notice also that the
definition of “air pollutant” specifically requires that it is released into the ambient air, meaning
GHGs have also been found to be emitted into the ambient air.189
B. Comparing the Substantive Requirements of the Provisions
To be regulated under Section 202(a), the Mobile Source Emissions Standards, the
following requirements must be satisfied:
The Administrator shall by regulation prescribe (and from time to time revise)
in accordance with the provisions of this section, standards applicable to the
emission of any air pollutant from any class or classes of new motor vehicles
or new motor vehicle engines, which in his judgment cause, or contribute to,
air pollution which may reasonably be anticipated to endanger public health
or welfare.190
In order to qualify as a criteria pollutant for the NAAQS, an “air pollutant” must meet the
following requirements:
(1) For the purpose of establishing national primary and secondary ambient air
quality standards, the Administrator shall within 30 days after December 31,
1970, publish, and shall from time to time thereafter revise, a list which includes
each air pollutant-(A) emissions of which, in his judgment, cause or contribute to air
pollution which may reasonably be anticipated to endanger public health
or welfare;
(B) the presence of which in the ambient air results from numerous or
diverse mobile or stationary sources; and
(and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission
of any air pollutant . . . .”) (emphasis added).
187
§ 7602(g).
188
549 U.S. 497, 528-29 (2007); see also Subsection II.A.ii.b.
189
42 U.S.C. § 7602(g) (“‘[A]ir pollutant’ means any air pollution agent or combination of such agents. . .
which is emitted into or otherwise enters the ambient air.”).
190
§ 7521(a)(1) (emphasis added).
28
(C) for which air quality criteria had not been issued before December 31,
1970 but for which he plans to issue air quality criteria under this
section.191
The text of these provisions has parallel language. The similarity of the language in each of these
provisions and the impact of this similarity on an endangerment finding under the NAAQS is
discussed below.
i.
The EPA’s First Step in Classifying Greenhouse Gases as a Criteria
Pollutant Is Satisfied Because the “presence of [Greenhouse Gases] in the
ambient air results from numerous or diverse mobile or stationary
sources”192
A logical place to start the analysis of whether the EPA is compelled to classify GHGs as
a criteria pollutant under the NAAQS is to determine whether GHGs in the ambient air result
from “numerous or diverse mobile or stationary sources.”193 This requirement is different than
the Section 202(a) requirement that the air pollutant must be emitted “from any class or classes
of new motor vehicles or motor vehicle engines.”194 A “‘stationary source’ means generally any
source of an air pollutant except those emissions resulting directly from an internal combustion
engine for transportation purposes or from a nonroad engine or nonroad vehicle.”195 Though the
phrase “ambient air” may have imposed a limitation on the applicability of the NAAQS to local
pollution, the Supreme Court stated in Massachusetts v. EPA that the Clean Air Act is not limited
to local ambient air, as the phrase “ambient air” in the statute does not distinguish between
atmospheric levels.196 The requirement that the GHGs are present in the ambient air due to
191
§ 7408(a)(1)(A)-(C) (emphasis added).
42 U.S.C. § 7408(a)(1)(B).
193
Id.
194
§ 7521(a)(1).
195
§ 7602(z).
196
Massachusetts v. EPA, 549 U.S. 497, 529 n.26 (quoting 42 U.S.C. § 7602(g)) (“[The] EPA’s distinction
[between local and global atmosphere pollutants], however, finds no support in the text of the statute, which uses the
phrase ‘the ambient air’ without distinguishing between atmospheric layers. Moreover, it is a plainly unreasonable
192
29
numerous stationary and mobile sources is satisfied because GHGs in the United States are
emitted from many different mobile and stationary sources, e.g., electricity production,
transportation, industry, commercial and residential, agriculture, and land use and forestry, and
the ambient air is not limited to local air.197
ii.
The EPA’s Second Step in Classifying Greenhouse Gases as a Criteria
Pollutant Is Satisfied the “air pollution may reasonably be anticipated to
endanger public health or welfare”198
Under both provisions, the EPA must first decide whether the air pollution in question
“may reasonably be anticipated to endanger public health or welfare.”199 In the Endangerment
Findings for Mobile Sources, the EPA determined that the six well-mixed GHGs in the
atmosphere “may reasonably be anticipated both to endanger public health and to endanger
public welfare.”200 The EPA based that determination on strong evidence of GHGs in the
atmosphere and climate change’s adverse impact on both public health and welfare.201 As stated,
the language at issue for both of these provisions is identical regarding the standard of
endangerment for the air pollution, including the requirement for a “judgment” by the
Administrator of the EPA.202
reading of a sweeping statutory provision designed to capture ‘any physical, chemical . . . substance or matter which
is emitted into or otherwise enters the air.’”).
197
EPA,
Sources
of
Greenhouse
Gas
Emissions,
EPA,
http://www.epa.gov/climatechange/ghgemissions/sources.html (last visited April 1, 2014); see § 7408(a)(1)(B). This
requirement might even be satisfied if it was limited to the local ambient air because the emitted GHGs must be
present in the local ambient air in order to reach other atmospheric levels.
198
§§ 7408(a)(1)(A) & 7521(a)(1).
199
Id.
All language referring to effects on welfare includes, but is not limited to, effects on soils, water,
crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage
to and deterioration of property, and hazards to transportation, as well as effects on economic
values and on personal comfort and well-being, whether caused by transformation, conversion, or
combination with other air pollutants.
§ 7602(h).
200
Endangerment Findings, 74 Fed. Reg. 66496, 66497 (Dec. 15, 2009).
Id. at 66497-99, 66516-36; see also discussion supra Subsection II.B.i.
202
§§ 7408(a)(1)(A) & 7521(a)(1).
201
30
In Massachusetts v. EPA, the Supreme Court held that this language did not give the
Administrator a “roving license” to ignore the statutory text, but that the determination had to be
based on a scientific judgment of whether the air pollution “may reasonably be anticipated to
endanger public health or welfare.”203 As discussed, the EPA made this finding for the
Endangerment Findings for Mobile Source Provisions, and there is no reasoned basis for
declining to apply the findings that GHGs adversely impact the public health and welfare from
mobile sources to both mobile and stationary sources under the NAAQS, especially considering
stationary sources emit more GHGs than mobile sources.204
In addition, the Supreme Court recognized the adverse impacts of climate change and
GHGs in the atmosphere in its discussion of petitioners’ standing in Massachusetts.205 Also, the
D.C. Circuit Court of Appeals upheld the Endangerment Findings for Mobile Sources as not
arbitrary or capricious and held that the science was adequate, as the use of the major
assessments for evidence of harms and causation and the residual uncertainty of climate change
did not render the Findings arbitrary or capricious.206 Additionally, the Supreme Court refused to
analyze these findings when it denied certiorari regarding review of the adequacy of the
Endangerment Findings for Mobile Sources.207 Furthermore, at this point, the science has further
203
§§ 7408(a)(1)(A) & 7521(a)(1); Massachusetts v. EPA, 549 U.S. 497, 532-33 (2007); see also
discussion supra Subsection II.A.ii.c.
204
See EPA, National Greenhouse Gas Emissions Data, EPA, http://www.epa.gov/climatechange/
ghgemissions/usinventoryreport.html (last visited May 3, 2014).
205
Massachusetts, 549 U.S. at 516-26 (“The harms associated with climate change are serious and well
recognized.”); see also discussion supra Subsection II.A.ii.a.
206
Coal. for Responsible Regulation, Inc. v. EPA., 684 F.3d 102, 117-26 (D.C. Cir. 2012). While this
holding does not mean the EPA could not have arrived at a different conclusion, it does indicate the reviewing
court’s acceptance of the science used by the EPA that would be directly applicable to the criteria pollutant
classification. Id.
207
Util. Air Regulatory Grp. v. EPA., 571 U.S. __; 134 S. Ct. 418 (2013) (granting certiorari for the sole
issue of “'[w]hether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor
vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse
gases’”).
31
developed and has become more certain and detailed regarding the adverse impacts of GHGs in
the atmosphere and climate change on the public health and welfare.208
For these reasons, the findings made in the Endangerment Findings for Mobile Sources,
further supported by advances in climate change science, logically mean that the requirement
under the NAAQS that GHG air pollution endangers the public health and welfare is satisfied.
iii.
Greenhouse Gases Cause or Contribute to the Air Pollution and Climate
Change
In the EPA’s Endangerment Findings for Mobile Sources, the EPA easily concluded that
GHGs emitted from Section 202(a) sources (transportation sources) contribute to GHG air
pollution and therefore climate change.209 The transportation sources under Section 202(a)
accounted for 23 percent of the total United States six well-mixed GHG emissions and 4 percent
of the total global well-mixed GHG emissions.210 If all stationary and mobile sources are covered
by the NAAQS, then all of the six well-mixed GHG anthropogenic emissions are emitted from
these sources.211 Additionally, as of 2008, the United States emitted 19 percent of the total world
carbon dioxide emissions.212 As the EPA noted, the Supreme Court stated that “[j]udged by any
standard, U.S. motor-vehicle emission make a meaningful contribution to greenhouse gas
208
See IPCC WORKING GROUP III, Climate Change 2014: Mitigation of Climate Change, (Apr. 11, 2014),
http://mitigation2014.org/report/final-draft/ (providing links to the pdf chapters of the report); IPCC WORKING
GROUP II, Climate Change 2014: Impacts, Adaptation, and Vulnerability, (Mar. 31, 2014), http://ipccwg2.gov/AR5/report/final-drafts/ (providing links to the pdf chapters of the report); see also discussion supra
Subpart I.B.
209
Endangerment Findings, 74 Fed. Reg. 66496, 66499 (Dec. 15, 2009).
210
Id.
211
“Stationary source” is defined by the general provisions of the Clean Air Act as “any source of an air
pollutant except those emissions resulting directly from an internal combustion engine for transportation purposes or
from a nonroad engine or nonroad vehicle as defined in [the Mobile Source Emissions Standards].” 42 U.S.C. §
7602 (2013). The relevant portion of the Code of Federal Regulations for the NAAQS does not provide an
alternative definition. See 40 C.F.R. § 50.1 (2013). Therefore, stationary sources combined with mobile sources
together include all sources that emit GHGs because a stationary source is defined essentially as not being a mobile
source.
212
EPA,
Global
Greenhouse
Emissions
Data,
EPA,
http://www.epa.gov/climatechange/ghgemissions/global.html (last visited April 1, 2014).
32
concentrations and hence, . . . to global warming.”213 To claim that GHG emissions from mobile
sources, but not GHG emissions from mobile sources and stationary sources contribute to GHG
atmospheric pollution and climate change would be beyond illogical.214 Therefore, the Supreme
Court’s decision in Massachusetts and the EPA’s finding that mobile sources contribute to
climate change – and reasoning behind this finding – dictate that GHGs for the purpose of the
NAAQS contribute to climate change.215
C. Classification of Criteria Pollutants that Meet the Requirements is Statutorily
Mandatory
The language of the NAAQS provision states, “For the purpose of establishing national
primary and secondary ambient air quality standards, the Administrator shall . . . publish, and
shall from time to time thereafter revise, a list which includes each air pollutant” that meets the
substantive requirements discussed above and “for which air quality criteria had not been issued
before December 31, 1970 but for which he plans to issue air quality criteria under this
section.”216 This language indicates that the Administrator has a duty to revise the list of criteria
pollutants.217 The language of the Act further states:
Not later than December 31, 1980, and at five-year intervals thereafter, the
Administrator shall complete a thorough review of the criteria . . . and the
national ambient air quality standards . . . and shall make such revisions in such
criteria and standards and promulgate such new standards as may be appropriate .
. . .218
213
Massachusetts v. EPA, 549 U.S. 497, 525 (2007); Endangerment Findings, 74 Fed. Reg. at 66499.
Especially considering that stationary sources include the electricity generation sector, which emitted 33
percent of the total United States six well-mixed GHG emission, as opposed to the transportation sector’s 28
percent. Sources, supra note 197.
215
See Massachusetts, 549 U.S. at 525; Endangerment Findings, 74 Fed. Reg. at 66499.
216
42 U.S.C. § 7408(a)(1).
217
See id.
218
§ 7409(d)(1) (emphasis added).
214
33
This language creates a mandatory duty of revision for the Administrator and sets a specific
schedule: every five years.219 Furthermore, an independent scientific review committee has a
similar obligation to review the criteria and the NAAQS and to recommend to the Administrator
any revisions.220
In National Resources Defense Council v. Train, after a detailed discussion of legislative
history, EPA policy, and case law, the Court of Appeals for the Second Circuit held that the
language of Section 108 of the Clean Air Act (codified at 42 U.S.C. Section 7408 and quoted
above) mandated that once the Administrator made the determination that the air pollutant met
the two substantive requirements,221 the Administrator had to classify the pollutant as a criteria
pollutant.222 The Court noted that the discretion given to the Administrator in the provision is in
reviewing the state implementation plans, and “does not extend to the issuance of air quality
standards for substances derived from specified sources which the Administrator had already
adjudged injurious to health.”223 Additionally, in National Audubon Society v. Department of
Water, citing Train, the Court of Appeals for the Ninth Circuit stated, “Once the EPA determines
that a particular pollutant has an adverse effect on public health or welfare and originates from
one or more numerous or diverse mobile or stationary sources, the EPA must develop national
air quality standards and the states must implement them within a limited time period.”224
Additionally, in Train, the Second Circuit noted that regulation of an air pollutant under one of
219
Id.
§ 7409(d)(2)(A)-(B).
221
§ 7408(a)(1)(A)-(B) (stating that the NAAQS apply to air pollutants “emissions of which, in his
judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or
welfare” and “the presence of which in the ambient air results from numerous or diverse mobile or stationary
sources”).
222
Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320, 325 (2d Cir. 1976) (affirming the order of the
district court that held that classification of lead as a criteria pollutant was mandated).
223
Id. at 325.
224
869 F.2d 1196, 1201-02 (9th Cir. 1988).
220
34
the other various provisions of the Clean Air Act did not obviate the need to regulate under the
NAAQS.225
This reading of the statute is in accordance with basic principles of statutory construction.
Congress’s use of the word “shall” in the provisions vests the EPA with a nondiscretionary duty
to revise the list of criteria pollutants and list those that meet the statutory definition every five
years.226 Furthermore, Congress’s use of the word “each” before “air pollutant” indicates that the
EPA has to list every air pollutant that meets the requirements.227 Regulating the six well-mixed
GHGs as a single pollutant would be proper, as the GHGs have “common properties.”228 This
type of regulation of multiple substances as one air pollutant is exemplified by the EPA’s current
regulation of particulate matter (PM) under the NAAQS, as PM10 and PM25 both are made of
multiple different substances with common properties regulated as a single air pollutant.229
In addition, like in Section 202(a) for transportation sources, the language “in [the
Adminstrator’s] judgment” does not give the EPA “roving license” to ignore the statutory text,
and here the text mandates application of the NAAQS to air pollutants that meet the statutory
requirements.230 Additionally, the EPA’s “judgment” of whether to regulate GHGs under the
NAAQS must be based on a reasoned decision whether the GHGs cause or contribute to air
225
545 F.2d at 327-28.
See Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 126 (D.C. Cir. 2012) (“By employing
the verb ‘shall,’ Congress vested a non-discretionary duty in EPA.”). However see discussion infra note 286 and
accompanying text (discussing Young v. Community Nutrition Institute, 476 U.S. 974 (1986), where the Supreme
Court held a reasonable interpretation of “shall” in the context was “may”).
227
MERRIAM WEBSTER DICTIONARY, “Each” (defining “each” as “every one of two or more people or
things considered separately).
228
Endangerment Findings, 74 Fed. Reg. 66496, 66519 (Dec. 15, 2009) (discussing why regulating the six
well-mixed GHGs as “an air pollutant” is proper, comparing it to PM, which is defined as a “complex mixture of
extremely small particles and liquid droplets. Particle pollution is made up of a number of components, including
acids (such as nitrates and sulfates), organic chemicals, metals, and soil or dust particles”)
229
Id.; see also 40 C.F.R. § 50.6-.7 (2013) (setting the NAAQS for PM10 and PM25).
230
See Massachusetts v. EPA, 549 U.S. 497, 533 (2007).
226
35
pollution that may reasonably endanger public health or welfare.231 As has been explained, these
endangerment findings are logically compelled.232
Finally, the third statutory requirement in the analysis for listing a criteria pollutant is that
the “shall . . . revise, a list which includes each air pollutant . . . for which air quality criteria had
not been issued before December 31, 1970 but for which he plans to issue air quality criteria
under this section.”233 Arguably this could introduce a basis for agency discretion to decide to list
a pollutant as a criteria pollutant.234 However, as the Second Circuit explained, though the text of
Section 7048(a)(1)(C) is somewhat ambiguous, the legislative history makes clear that the listing
of pollutants was intended to be mandatory and “deliberate inclusion of a specific timetable for
the attainment of ambient air quality standards . . . would become an exercise in futility if the
Administrator could avoid listing pollutants simply by choosing not to issue air quality
criteria.”235 The District Court explained that the “but for which he plans to issue air quality
criteria” language did not create a third requirement that must be met because of legislative
history and the health-oriented nature of the Clean Air Act.236 The District Court stated that the
EPA had discretion in making endangerment findings, but it did not have discretion not to list a
231
Id. at 532-33.
See discussion supra Section III.B.
233
42 U.S.C. § 7408(a)(1).
234
See the EPA’s argument in Natural Resource Defense Council, Inc. v. Train, 545 F.2d 320, 325 (2d Cir.
1976) and Natural Resource Defense Council, Inc. v. Train, 411 F. Supp. 864, 867 (S.D.N.Y. 1976) aff'd, 545 F.2d
320 (2d Cir. 1976). Note that the Second Circuit stated that it agreed with the District Court’s decision on this
specific issue. Train, 545 F.2d at 325.
235
Train, 545 F.2d at 326-27. At the time of the issuance of Train, the Supreme Court had not yet decided
Chevron v. Natural Resource Defense Council, Inc., which mandates deference to an agency’s reasonable reading of
a statutory ambiguity. 467 U.S. 837, 842-43 (1984). This means if a reviewing court found the statutory language
and intent ambiguous, the reviewing court would have to defer to a reasonable interpretation by the EPA, which
could include a reading that the revision of the criteria pollutants is discretionary. For further discussion, see
discussion infra notes 279-286 and accompanying text. However, the Second Circuit in Train stated that while the
“literal language” of the statute was ambiguous, Congressional had evidenced a clear intent to make the listing of
criteria pollutants that met the statutory requirements mandatory. Train, 545 F.2d at 326-27 Therefore, if the
reviewing court followed the precedent of the Second Circuit, Chevron deference would not apply and it would have
to follow the clear intent of Congress and hold listing of criteria pollutants to be mandatory.
236
Train, 411 F. Supp at 868.
232
36
pollutant that had been found to satisfy the endangerment and cause or contribution
requirements.237
As has been explained above, the EPA has already found that GHGs may reasonably be
anticipated to endanger the public health or welfare, and logic dictates that if mobile sources
contribute to the climate change problem, so do both mobile and stationary sources.238 Therefore,
any decision by the EPA denying a petition to make an Endangerment Finding for the NAAQS
would be arbitrary and capricious. After this endangerment finding is made, listing the six wellmixed GHGs as a criteria pollutant and setting NAAQS would then be a mandatory duty for the
EPA.239
IV.
REGARDLESS OF LEGAL NECESSITY, ENVIRONMENTALISTS SHOULD NOT FORCE THE ISSUE
Though the existing regulatory framework and the NAAQS provisions likely mandate
that GHGs be classified as a criteria pollutant, the EPA would probably never make this decision
without being forced.240 Even though the statute expressly contemplates adding new criteria
pollutants, the EPA has only ever added a single pollutant – lead – to the original list of criteria
pollutants listed by Congress.241 And, as discussed above, this was after an environmental group
forced the issue in court.242 One scholar writes, “It is unlikely that [the] EPA will take steps to
regulate any new criteria pollutants other than the six that are currently regulated for the simple
reason that almost all air pollutants with known or suspected effects on public health or the
237
Id. However, as discussed below, the EPA has not listed any other pollutant since Train mandated that it
list lead. See infra notes 241-244. Though groups have petitioned the EPA to list other criteria pollutants, there has
been no further apparent action taken or any more recent litigation regarding the mandatory listing of criteria
pollutants. See, e.g., Broad Coalition Petitions EPA to Regulate Ammonia Gas Pollution from Factory Farms,
HUMANE
SOC’Y
U.S.
(Apr.
6.
2011),
http://www.humanesociety.org/news/press_releases/2011/04/ammonia_epa_04062011.html.
238
See discussion supra Sections III.A-B.
239
42 U.S.C. § 7408(a)(1); Train, 545 F.2d at 326-27.
240
BELDEN, supra note 13, at 24.
241
CHRIS WOLD, DAVID HUNTER, & MELISSA POWERS, CLIMATE CHANGE AND THE LAW 540 (2009).
242
See generally Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320 (2d Cir. 1976).
37
environment are currently regulated under the Clean Air Act.”243 Therefore, any steps taken to
list GHGs as a criteria pollutant would need to be forced through litigation.244 In fact, on
December 2, 2009, the Center for Biological Diversity and 350.org filed a petition with the EPA
to request that it regulate GHGs under the NAAQS.245 No action has apparently been taken by
either the petitioners or the EPA.246
Why has the Center of Biological Diversity not forced the issue? Is the EPA proper,
practically speaking, in ignoring the petition? If we as a nation seek to do everything we can to
combat climate change, shouldn’t we use all tools available to us? The answer to these questions
is likely that the NAAQS are not properly suited to addressing the global problem of GHGs in
the atmosphere.
A. Regulating GHGs Does Not Make Practical Sense Under the NAAQS
When the Center for Biological Diversity and 350.org petitioned the EPA to regulate
GHGs under the NAAQS, “many experts . . . insist[ed] that it does not make sense” to regulate
GHGs as criteria pollutants under the NAAQS.247 In fact, in October of 2009, Gina McCarthy,
the EPA’s air chief, reportedly stated that the EPA did not intend to regulate GHGs under the
NAAQS.248 The petition requested that the EPA set the level of carbon dioxide in the atmosphere
243
BELDEN, supra note 13, at 24.
Janine Maney, Carbon Dioxide Emissions, Climate Change, and the Clean Air Act: An Analysis of
Whether Carbon Dioxide Should Be Listed as a Criteria Pollutant, 13 N.Y.U. Envtl. L.J. 298, 376 (2005)
(discussing that litigation would be a necessary step in order to force the EPA to list carbon dioxide as a criteria
pollutant).
245
Ctr. for Biological Diversity, Petition to Establish National Pollution Limits for Greenhouse Gases
Pursuant
to
the
Clean
Air
Act,
Dec.
2,
2009,
available
at
http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/P
etition_GHG_pollution_cap_12-2-2009.pdf [hereinafter “Petition”].
246
See
About
the
Climate
Law
Institute,
CTR.
FOR
BIOLOGICAL
DIVERSITY,
http://www.biologicaldiversity.org/programs/climate_law_institute/index.html (last visited Apr. 1, 2014)
(mentioning the petition, but not indicating any further action or response).
247
Bravender, supra note 39.
248
Id.
244
38
at 350 parts per million (ppm), indicating that levels at the time were at 385.2 ppm.249 The chief
climate counsel of the Sierra Club, David Bookbinder, indicated that the petition’s position was a
minority view “and that the document is headed to ‘well-deserved bureaucratic oblivion’ at [the]
EPA.”250 A former EPA air chief (during the George W. Bush Administration) and industry
attorney claimed that the petition was more of a political statement than anything and that he did
know anyone at the EPA who thought regulating GHGs under the NAAQS was a sensible
decision.251 The goal of 350 ppm is supported by NASA scientists and experts in the field.252
However, that the goal of the petition was sensible does not mean the means suggested are.
The basic requirements of the NAAQS are as follows. Once an air pollutant has been
classified as a criteria pollutant, the EPA must promulgate primary and secondary NAAQS. The
primary NAAQS must be set at a level sufficient, with “an adequate margin of safety,” to protect
the public health.253 The secondary NAAQS must be set at a level “to protect the public welfare
from any known or anticipated adverse effects associated with the presence of such air pollutant
in the ambient air.”254 The public welfare
includes, but is not limited to, effects on soils, water, crops, vegetation, manmade
materials, animals, wildlife, weather, visibility, and climate, damage to and
deterioration of property, and hazards to transportation, as well as effects on
economic values and on personal comfort and well-being, whether caused by
transformation, conversion, or combination with other air pollutants.255
The NAAQS are expressed as either an acceptable concentration for a specific time
period or acceptable mass per volume of air.256 The EPA then delegates authority to the states to
enforce the standards, requiring the states to create state implementation plans (SIPs) that have
249
Petition, supra note 245, at 18-24.
Bravender, supra note 39.
251
Id.
252
Id.; Petition, supra note 245, at 20-24.
253
42 U.S.C. § 7409(b)(1).
254
§ 7409(b)(2).
255
§ 7602(h).
256
BELDEN, supra note 13, at 12.
250
39
the goal of attaining or maintaining the NAAQS.257 The EPA along with the relevant body of the
states establish air quality control regions (AQCRs), and then these different AQCRs or portions
thereof are labeled as either in attainment or not in attainment for each of the different criteria
pollutants.258 Certain other programs of the Clean Air Act are tied to whether the areas are in
attainment or nonattainment.259 The program is premised on the idea that certain areas can be in
attainment and others will not and different methods will be used in the nonattainment areas.260
There are two major practical problems with regulating GHGs under the NAAQS. First,
climate change is a global and unique problem. Concentrations of GHGs are essentially the same
throughout the world.261 Additionally, the global nature of the problem and the GHGs unique
indirect path of adversely impacting public health and welfare mean that the EPA cannot set
NAAQS that meet the statutory requirements.262 The GHGs adverse impact is unique because the
indirect impact of the GHGs is different than the other criteria pollutants, which generally cause
direct adverse health impact due to the concentration, such as PM causing asthma.263 The
greenhouse effect, not the concentration of the pollutant itself, is what causes the harm from
GHGs.264 Therefore, addressing GHGs through the NAAQS is quite different than any current
criteria pollutant because it is not the “mere presence of [GHGs] in the air that is dangerous,” but
the total “volume of carbon dioxide emissions” in the global atmosphere that causes the harms,
257
§ 7410. If a state declines to create a SIP (which it can do based on tenants of United States federalism)
or the SIPs fall short of the requirements, the EPA institutes a federal implementation plan (FIP). § 7410(c)(1); New
York v. United States, 505 U.S. 144, 176 (1992) (holding that the federal government cannot commandeer the states
or force them to carry out a federal program).
258
§ 7410(a)(1); BELDEN, supra note 13, at 23.
259
BELDEN, supra note 13, at 11.
260
Bravender, supra note 39.
261
Id.
262
See Reuven S. Avi-Yonah & David M. Uhlmann, Combating Climate Change: Why a Carbon Tax Is a
Better Response to Global Warming Than Cap and Trade, 28 STAN. ENVTL. L.J. 3, 23-34 (2009).
263
Id. at 23.
264
Id. at 24.
40
which is not conducive to addressing at a local level unlike current criteria pollutants.265
Furthermore, that the concentration of the GHGS are consistent throughout the world and
impacted by world emissions means that the whole world would either be in an attainment area
or a nonattainment area.266 The EPA could not meaningfully set primary or secondary NAAQS,
as the United States alone could not reach NAAQS that were statutorily set at a level that
provided an adequate margin of safety sufficient to protect health or even adequate to protect the
public welfare.267 Therefore, it would not make sense to use the NAAQS as a tool to address
GHGs.
If Congress created statutory amendments that allowed a different approach under the
NAAQS for GHGs, with lowered expectations that did not require the level of emissions to be
set at levels adequate to protect the public health and welfare, the NAAQS could potentially be
used to address climate change. Even without Congressional amendment, efforts states would
have to use to attempt to achieve the NAAQS could be helpful in combating climate change. A
detailed discussion of such efforts is beyond the scope of this article.268 However, due to
Congressional stand-still, relying on Congress to act is unwise, especially on the issue of climate
change.269 Additionally, even though efforts to reach the NAAQS could mitigate climate change,
265
Jesse Reiblich, Addressing Climate Change: Have the Political Winds Shifted in Favor of a Carbon Tax,
2 L.S.U. Energy L. & Resources 49, 55 (2013).
266
Avi-Yonah & Uhlmann, supra note 262, at 24.
267
Id. at 24; 42 U.S.C. § 7409(b)(1)-(2).
268
For a discussion of such efforts, the IPCC’s Working Group III published on April 11, 2014 provides a
highly detailed discussion of efforts that can and should be used to mitigate climate change and the IPCC’s Working
Group II published on March 31, 2014 a detailed discussion of adaptation to climate change. IPCC WORKING
GROUP
III,
Climate
Change
2014:
Mitigation
of
Climate
Change,
(Apr.
11,
2014),
http://mitigation2014.org/report/final-draft/ (providing links to the pdf chapters of the report); IPCC WORKING
GROUP II, Climate Change 2014: Impacts, Adaptation, and Vulnerability, (Mar. 31, 2014), http://ipccwg2.gov/AR5/report/final-drafts/ (providing links to the pdf chapters of the report).
269
See Gene Karpinski, Where Do Your Members of Congress Stand on Climate Change?¸ HUFF. POST
(Aug. 8, 2013), http://www.huffingtonpost.com/gene-karpinski/where-do-your-members-of-_b_3727903.html
(discussing how “[w]e can't count on members of Congress to fix a problem if they don't even admit it exists”); see
also, e.g., Tom Cohen¸ U.S. Government Shuts Down as Congress Can’t Agree on Spending Bill, CNN (Oct. 1,
2013), http://www.cnn.com/2013/09/30/politics/shutdown-showdown/.
41
mandating achievement of an unachievable goal is not the only means to make use of such
efforts.270 Instead, the federal, state, local governments and private entities should use efforts to
practically and effectively combat climate change.
B. State Implementation Would Cause Significant Problems
Historically, the EPA has had difficulties in delegation of implementation of the NAAQS
to the states.271 The EPA has had difficulty with states failing to develop and implement their
SIPs.272 Additionally, sometimes states create SIPs that are too restrictive, which could become
the case if states try to reach NAAQS set by the EPA that attempt to protect the public health and
welfare.273 Furthermore, the states have shown recent resistance to implementing federally
mandated programs when they are controversial, for example, the Affordable Care Act.274
Because a large, vocal portion of the American public has not accepted that climate change is
anthropogencially caused or even that climate change exists,275 delegating enforcement of such a
demanding and resource-consuming plan to the states would likely be met with resistance and
refusal to comply with requests for SIPs. This public opposition and problems with delegation
would be further compounded by the fact that “[i]ndividual states do not have the funding or
resources to adequately address an international problem like climate change.”276 This could
270
See, e.g., supra notes 26-36 and accompanying text.
CARLARNE, supra note 11, at 32.
272
Id.
273
See id.
274
Sandhya Somashekhar, States Find New Ways to Resist Health Law, WASH. POST, Aug. 28, 2013,
http://www.washingtonpost.com/national/health-science/states-find-new-ways-to-resist-healthlaw/2013/08/28/c63f8498-0a93-11e3-8974-f97ab3b3c677_story.html. (“Several Republican-led states at the
forefront of the campaign to undermine President Obama’s health-care law have come up with new ways to try to
thwart it, refusing to enforce consumer protections, for example, and restricting federally funded workers hired to
help people enroll in coverage. And in at least one state, Missouri, local officials have been barred from doing
anything to help put the law into place.”).
275
Karpinski, supra note 269 (discussing that many members of Congress deny the existence of climate
change or that it is anthropogenically caused); Simon & Pentland, supra note 3, at 220-23; Hoffman, supra note 3.
276
Reiblich, supra note 265, at 55.
271
42
undermine other valid uses of state resources and further alienate people already resisting actions
to combat climate change.
Even if meaningful levels of NAAQS could be set for GHGs, the state implementation of
the NAAQS would create a possibly insurmountable obstacle to its enforcement.
C. The Supreme Court Could Read More Discretion into the Clean Air Act
If litigants did try to force the EPA to regulate GHGs under the NAAQS, the Supreme
Court could have the opportunity to introduce more discretion into the Clean Air Act. For
instance, the Supreme Court has never decided whether listing criteria pollutants after an
endangerment finding is necessary under the statute. The Court could decide in opposition to the
Second Circuit’s decades old decision and find that the Administrator has discretion not to list
criteria pollutants.277 While this direct holding may not cause problems due to the EPA’s general
inaction in listing new criteria pollutants, introducing discretion into this portion of the Clean Air
Act may set precedent for more discretion in the heretofore science and health focused Act.278
The Court would likely introduce discretion into the Clean Air Act through Chevron
deference.279 The Chevron doctrine governs judicial review of agency interpretations of statutory
delegations.280 Under Chevron, the reviewing court first asks whether “Congress has directly
spoken to the precise question at issue.”281 If Congress’s intent is clear, then it is controlling and
any other interpretation by an agency is improper.282 If Congress’s intent is not clear, then the
court must review the agency’s interpretation deferentially and uphold the interpretation if it “is
277
See Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320, 325 (2d Cir. 1976).
Massachusetts v. EPA, 549 U.S. 497, 533-34 (2007) (holding that an endangerment finding under the
Mobile Source Emissions Standards must be made based on scientific judgment regarding the air pollutant’s effect
on public health and welfare); Natural Res. Def. Council, Inc. v. Train, 411 F. Supp. 864, 868 (S.D.N.Y. 1976) aff'd,
545 F.2d 320 (2d Cir. 1976).
279
Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)
280
Id. at 842-43.
281
Id. at 842.
282
Id. at 842-43.
278
43
based on a permissible construction of the statute.”283 This doctrine would allow the Court to
determine that a portion of the Clean Air Act was ambiguous and thereby defer to the
interpretation of the EPA that did not require classification of GHGs as criteria pollutants. One
possible source of this ambiguity was discussed by the Second Circuit. In Natural Resource
Counsel Defense, Inc. v. Train, the Second Circuit stated that the statutory language regarding
revision of criteria pollutants was “ambiguous” as to its “literal language,” though Congress’s
intent was clear.284 The Supreme Court could use this ambiguity in the text to allow the EPA to
avoid listing criteria pollutants regardless of the apparent mandatory language, i.e., “shall.”285 In
Young v. Community Nutrition Institute, the Court determined that the use of the word “shall” in
the context of an apparently unambiguous statute could mean “may” and deferred to the
“reasonable” interpretation of the agency.286 The Court could apply this same rationale to the
Clean Air Act, specifically the NAAQS, and thereby set the precedent of introducing
unnecessary discretion into portions of the Clean Air Act.
Additionally, the Supreme Court could apply the “prevention of absurd results” doctrine
to avoid requiring the EPA to apply the NAAQS to greenhouse gases, perhaps even in the
absence of ambiguous language.287 The prevention of absurd results doctrine requires that
283
Id. at 843. “The court need not conclude that the agency construction was the only one it permissibly
could have adopted to uphold the construction, or even the reading the court would have reached if the question
initially had arisen in a judicial proceeding.” Id. at 843 n.11.
284
Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320, 326-27 (1976). This decision came before
Chevron was decided in 1984.
285
42 U.S.C. § 7408 (a)(1) (“For the purpose of establishing national primary and secondary ambient air
quality standards, the Administrator shall . . . publish, and shall from time to time thereafter revise, a list which
includes each air pollutant . . . .”) (emphasis added); §7409(d)(1) (“Not later than December 31, 1980, and at fiveyear intervals thereafter, the Administrator shall complete a thorough review of the criteria . . . and shall make such
revisions . . . .) (emphasis added).
286
476 U.S. 974 (1986).
287
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (acknowledging the validity of, but
refusing to apply the absurd results doctrine). This doctrine has already been used by the EPA in issuing the
Tailoring Rule for the PSD and Title V Programs of the Clean Air Act, which deviates from a clear statutory
mandate in the Clean Air Act regarding at what levels of emissions the programs should apply because the required
levels would be “absurd” if applied to GHGs. Tailoring Rule, 75 Fed. Reg. 31514, 31516 (June 3, 2010). The
44
“interpretations of a statute which would produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are available.”288 This could set
unnecessary precedent for allowing “prevention of absurd results” to allow the EPA to avoid
important regulations.
CONCLUSION
When deciding to act, the EPA is in theory constrained by the statutory limits of its
guiding statues. However, when an agency refuses to act, the public must challenge the agency’s
inaction to force it to comply with its statutory mandate. In determining whether to force the
EPA to classify GHGs as a criteria pollutant for the NAAQS, potential litigants should exercise
discretion and choose not to compel EPA’s rulemaking because the NAAQS are not a useful tool
in the battle against climate change. The United States and its individual states have limited
resources, and these resources should be used on programs that will effect positive change in the
efforts against climate change.
A program should not be ignored because it will use significant resources or take
significant efforts. Due to the disastrous nature and unfathomable scale of the adverse impacts of
climate change, significant resources and efforts must be taken. However, attempting to force the
climate change problem into a program that is not suited to address it would be a waste of
valuable time and money. Furthermore, attempting to do so could further alienate people already
skeptical of addressing climate change in any fashion. All programs used against climate change
should be a valuable use of resources, or the public may act out against not just the bad
programs, but the programs that are useful in this fight. For these reasons, even though the
application of the NAAQS s likely legally compelled, the public should exercise discretion
Tailoring Rule was upheld by the Second Circuit in Coalition for Responsible Regulation v. EPA. 684 F.3d 102,
132-49 (D.C. Cir. 2012). This was despite the fact that the language of the statutory delegation was unambiguous.
288
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982).
45
where the EPA legally cannot and should not attempt to force the EPA to classify GHGs as a
criteria pollutant subject to the NAAQS.
46